Cite as: 554 U. S.

____ (2008)

Per Curiam

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06984 (08A98), 085573 (08A99), and 085574 (08A99)

_________________

JOSE ERNESTO MEDELLIN

06984 (08A98)
v.
TEXAS
ON APPLICATION TO RECALL AND STAY MANDATE AND FOR
STAY

JOSE ERNESTO MEDELLIN

085573 (08A99)
v.
TEXAS
ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

IN RE JOSE ERNESTO MEDELLIN

085574 (08A99)
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
HABEAS CORPUS
[August 5, 2008]

PER CURIAM.
Petitioner seeks a stay of execution on the theory that
either Congress or the Legislature of the State of Texas
might determine that actions of the International Court of
Justice (ICJ) should be given controlling weight in determining that a violation of the Vienna Convention on Consular Relations is grounds for vacating the sentence imposed in this suit.
Under settled principles, these
possibilities are too remote to justify an order from this
Court staying the sentence imposed by the Texas courts.
And neither the President nor the Governor of the State of
Texas has represented to us that there is any likelihood of

MEDELLIN v. TEXAS
Per Curiam

congressional or state legislative action.

It is up to Congress whether to implement obligations
undertaken under a treaty which (like this one) does not
itself have the force and effect of domestic law sufficient to
set aside the judgment or the ensuing sentence, and Congress has not progressed beyond the bare introduction of a
bill in the four years since the ICJ ruling and the four
months since our ruling in Medelln v. Texas, 552 U. S. ___
(2008). This inaction is consistent with the Presidents
decision in 2005 to withdraw the United States accession
to jurisdiction of the ICJ with regard to matters arising
under the Convention.
The beginning premise for any stay, and indeed for the
assumption that Congress or the legislature might seek to
intervene in this suit, must be that petitioners confession
was obtained unlawfully. This is highly unlikely as a
matter of domestic or international law. Other arguments
seeking to establish that a violation of the Convention
constitutes grounds for showing the invalidity of the state
court judgment, for instance because counsel was inadequate, are also insubstantial, for the reasons noted in our
previous opinion. Id., at ___ (slip op., at 5).
The Department of Justice of the United States is well
aware of these proceedings and has not chosen to seek our
intervention. Its silence is no surprise: The United States
has not wavered in its position that petitioner was not
prejudiced by his lack of consular access.
The application to recall and stay the mandate and for
stay of execution of sentence of death, presented to
JUSTICE SCALIA, and by him referred to the Court, is
denied. The application for stay of execution of sentence of
death, presented to JUSTICE SCALIA, and by him referred
to the Court, is denied. The petition for a writ of habeas
corpus is denied.
It is so ordered.

Cite as: 554 U. S. ____ (2008)

STEVENS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06984 (08A98), 085573 (08A99), and 085574 (08A99)

_________________

JOSE ERNESTO MEDELLIN

06984 (08A98)
v.
TEXAS
ON APPLICATION TO RECALL AND STAY MANDATE AND FOR
STAY

JOSE ERNESTO MEDELLIN

085573 (08A99)
v.
TEXAS
ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

IN RE JOSE ERNESTO MEDELLIN

085574 (08A99)
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
HABEAS CORPUS
[August 5, 2008]

JUSTICE STEVENS, dissenting.

Earlier this Term, in Medelln v. Texas, 552 U. S. ___
(2008), we concluded that neither the President nor the
International Court of Justice (ICJ) has the authority to
require Texas to determine whether its violation of the
Vienna Convention prejudiced petitioner. Although I
agreed with the Courts judgment, I wrote separately to
make clear my view that Texas retained the authority
and, indeed, the duty as a matter of international lawto
remedy the potentially significant breach of the United
States treaty obligations identified in the Presidents
Memorandum to the Attorney General. Because it ap-

MEDELLIN v. TEXAS
STEVENS, J., dissenting

pears that Texas has not taken action to address the

serious national security and foreign policy implications of
this suit, I believe we should request the views of the
Solicitor General, who argued on behalf of the Executive
Branch in earlier proceedings in the suit, before allowing
Texas to proceed with the execution.
As I explained in my separate opinion in March, the cost
to Texas of complying with the ICJ judgment would be
minimal, particularly given the remote likelihood that the
violation of the Vienna Convention actually prejudiced
this petitioner. 552 U. S., at ___ (slip op., at 5) (STEVENS,
J., concurring in judgment). On the other hand, the costs
of refusing to respect the ICJs judgment are significant.
The entire Court and the President agree that breach will
jeopardize the United States plainly compelling interests
in ensuring the reciprocal observance of the Vienna Convention, protecting relations with foreign governments,
and demonstrating commitment to the role of international law. Ibid. Given these stakes, and given that
petitioner has been under a death sentence for 14 years,
waiting a short time to guarantee that the views of the
Executive have been given respectful consideration is only
prudent. Balancing the honor of the Nation against the
modest burden of a short delay to ensure that the breach
is unavoidable convinces me that the application for a stay
should be granted.
Accordingly, I respectfully dissent.

Cite as: 554 U. S. ____ (2008)

SOUTER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06984 (08A98), 085573 (08A99), and 085574 (08A99)

_________________

JOSE ERNESTO MEDELLIN

06984 (08A98)
v.
TEXAS
ON APPLICATION TO RECALL AND STAY MANDATE AND FOR
STAY

JOSE ERNESTO MEDELLIN

085573 (08A99)
v.
TEXAS
ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

IN RE JOSE ERNESTO MEDELLIN

085574 (08A99)
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
HABEAS CORPUS
[August 5, 2008]

JUSTICE SOUTER, dissenting.

I joined the dissent in Medelln v. Texas, 552 U. S. ,
(2008) (BREYER, J., dissenting), and invoke the rule that it
is reasonable to adhere to a dissenting position throughout
the Term of Court in which it was announced. See North
Carolina v. Pearce, 395 U. S. 711, 744 (1969) (Harlan, J.,
concurring in part and dissenting in part). The only
chance to apply the treaty provisions the dissent would
have held presently enforceable is now through action by
the other branches of the Government. A bill on the subject has been introduced in the Congress, Avena Case
Implementation Act of 2008, H. R. 6481, 110th Cong., 2d

MEDELLIN v. TEXAS
SOUTER, J., dissenting

Sess. (2008), and the Government has represented to the

International Court of Justice it will take further steps to
give effect to that courts judgment pertinent to Medellns
conviction, among others, Request for Interpretation of the
Judgment of 31 March 2004 in the Case Concerning Avena
and Other Mexican Nationals (Mex. v. U. S.), 2008 I. C. J.
No. 139, 37 (Order of July 16). I would therefore enter
the requested stay of execution for as long as the remainder of the 2007 Term, to allow for a current statement of
the views of the Solicitor General and for any congressional action that could affect the disposition of petitioners filings. I would defer action on the petition for a
writ of certiorari to the Court of Criminal Appeals of
Texas, the petition for an original writ of habeas corpus,
and the motion to recall and stay the mandate in Medelln
v. Texas, supra.

Cite as: 554 U. S. ____ (2008)

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06984 (08A98), 085573 (08A99), and 085574 (08A99)

_________________

JOSE ERNESTO MEDELLIN

06984 (08A98)
v.
TEXAS
ON APPLICATION TO RECALL AND STAY MANDATE AND FOR
STAY

JOSE ERNESTO MEDELLIN

085573 (08A99)
v.
TEXAS
ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

IN RE JOSE ERNESTO MEDELLIN

085574 (08A99)
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
HABEAS CORPUS
[August 5, 2008]

JUSTICE GINSBURG, dissenting.

I would grant the application for a stay of execution.
Before the International Court of Justice, in response to
Mexicos request for provisional measures, the United
States represented: [C]ontrary to Mexicos suggestion, the
United States [does] not believe that it need make no
further effort to implement this Courts Avena Judgment,
and . . . would continue to work to give that Judgment full
effect, including in the case of Mr. Medelln. Request for
Interpretation of the Judgment of 31 March 2004 in the
Case Concerning Avena and Other Mexican Nationals
(Mex. v. U. S.), 2008 I. C. J. No. 139, 37 (Order of July

MEDELLIN v. TEXAS
GINSBURG, J., dissenting

16). I would invite the Solicitor Generals clarification of

that representation very recently made to the international tribunal. Pending receipt and consideration of the
Solicitor Generals response, I would defer action on
Medellns submissions.

Cite as: 554 U. S. ____ (2008)

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

Nos. 06984 (08A98), 085573 (08A99), and 085574 (08A99)

_________________

JOSE ERNESTO MEDELLIN

06984 (08A98)
v.
TEXAS
ON APPLICATION TO RECALL AND STAY MANDATE AND FOR
STAY

JOSE ERNESTO MEDELLIN

085573 (08A99)
v.
TEXAS
ON APPLICATION FOR STAY AND PETITION FOR A WRIT OF
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF
TEXAS

IN RE JOSE ERNESTO MEDELLIN

085574 (08A99)
ON APPLICATION FOR STAY AND ON PETITION FOR A WRIT OF
HABEAS CORPUS
[August 5, 2008]

JUSTICE BREYER, dissenting.

The International Court of Justice (ICJ) has held that a
treaty that the United States has signed, namely, the
Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, [1970] 21 U. S. T. 77, T. I. A. S.
No. 6820, does not permit execution of this defendant
without a further hearing concerning whether Texas
violation of the Vienna Conventions obligation to notify
the defendant of his right to consult Mexicos consul constituted harmless error. Case Concerning Avena and
Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 6164 (Judgment of Mar. 31). The United States has agreed

MEDELLIN v. TEXAS
BREYER, J., dissenting

that the ICJs judgments will have binding force . . .

between the parties and in respect of [a] particular case.
United Nations Charter, Art. 59, 59 Stat. 1062, T. S. No.
993 (1945). The President of the United States has concluded that domestic courts should enforce this particular
ICJ judgment. Memorandum to the Attorney General
(Feb. 28, 2005), App. to Pet. for Cert. in Medelln v. Texas,
No. 06984, p. 187a.
In Medelln v. Texas, 552 U. S. ___ (2008) (six to three
vote), this Court, while recognizing that the United States
was bound by treaty to follow the ICJs determination as a
matter of international law, held that that determination
did not automatically bind the courts of the United States
as a matter of domestic law in the absence of further
congressional legislation. Id., at ___. In reaching this
conclusion the majority, as well as the dissent, recognized
that, without the further hearing that the ICJ found necessary, the execution would violate our international
treaty commitments. See id., at ___.
Petitioner, who is scheduled to be executed this evening,
now asks us to delay the execution in order to give Congress an opportunity to act to cure the legal defect that the
Court found in Medelln. In my view, several factors
counsel in favor of delay. First, since this Court handed
down Medelln, Mexico has returned to the ICJ requesting
this Nations compliance with its international obligations;
and the ICJ has asked that the United States take all
measures necessary to ensure that [the Mexican nationals] are not executed unless and until they receive review and reconsideration consistent with the ICJs earlier
Avena decision. See Request for Interpretation of the
Judgment of 31 March 2004 in the Case Concerning Avena
and Other Mexican Nationals (Mex. v. U. S.), 2008 I. C. J.
No. 139, 80 (Order of July 16).
Second, legislation has been introduced in Congress
seeking to provide the legislative approval necessary to

Cite as: 554 U. S. ____ (2008)

BREYER, J., dissenting

transform our international legal obligations into binding

domestic law. See Avena Case Implementation Act of
2008, H. R. 6481, 110th Cong., 2d Sess. (2008) (referred to
committee, July 14, 2008).
Third, prior to Medelln, Congress may not have understood the legal need for further legislation of this kind.
That fact, along with the approaching election, means that
more than a few days or weeks are likely necessary for
Congress to determine whether to enact the proposed
legislation.
Fourth, to permit this execution to proceed forthwith
places the United States irremediably in violation of international law and breaks our treaty promises.
Fifth, the President of the United States has emphasized the importance of carrying out our treaty-based
obligations in this case; this fact, along with the Presidents responsibility for foreign affairs, makes the Executives views of the matter pertinent.
Sixth, different Members of this Court seem to have
very different views of what this case is about. In my
view, the issue in this suitwhat the majority describe as
the beginning premiseis not whether a confession was
unlawfully obtained from petitioner. Cf. ante, at
.
Rather, the question before us is whether the United
States will carry out its international legal obligation to
enforce the decision of the ICJ. That decision requires a
further hearing to determine whether a conceded violation
of the Vienna Convention (Texas failure to inform petitioner of his rights under the Vienna Convention) was or
was not harmless. Nor do I believe the majority is correct
insofar as it implies that Congress has had four years to
consider the matter. See ibid. (Congress has not progressed beyond the bare introduction of a bill in the four
years since the ICJ ruling and the four months since our
ruling in Medelln v. Texas). To the contrary, until this
Court's decision in Medelln a few months ago, a member

MEDELLIN v. TEXAS
BREYER, J., dissenting

of Congress might reasonably have believed there was no

need for legislation because the relevant treaty provisions
were self-executing. It is not realistic to believe Congress
could act to provide the necessary legislative approval in
only a few weeks time.
In my view, we should seek the views of the Solicitor
General (which may well clarify these matters), and we
should grant a stay of sufficient length for careful consideration of those views, along with the other briefs and
materials filed in this suit. A sufficient number of Justices
having voted to secure those views (four), it is particularly
disappointing that no Member of the majority has proved
willing to provide a courtesy vote for a stay so that we can
consider the Solicitor Generals view once received. As it
is, the request will be mooted by petitioners execution,
which execution, as I have said, will place this Nation in
violation of international law.
For the reasons set forth, I respectfully dissent.